The opinion of the court was delivered by: McCLURE, District Judge.
On November 15, 1990 David Nahodil was indicted in a
four-count indictment charging firearms violations. Count I
alleged that on or about April 13, 1989, Nahodil used and
carried a Savage combination .22 caliber rifle/20 gauge shotgun
during and in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1). Count II charged that Nahodil, a
convicted felon, possessed the aforementioned rifle in
violation of 18 U.S.C. § 922(g). Count III charged a second
violation of 18 U.S.C. § 922(g) for Nahodil's alleged
possession of a 20 gauge Westernfield shotgun. Count IV alleged
that on or about July 25, 1989, Nahodil made a false statement
in connection with his acquisition of the Westernfield shotgun,
in violation of 18 U.S.C. § 922(a)(6).
On March 14, 1991, a superseding five-count indictment was
filed against Nahodil. Count I of the superseding indictment
charged Nahodil with making a false statement in connection
with his acquisition of the Savage combination .22 caliber
rifle/20 gauge shotgun in violation of 18 U.S.C. § 922(a)(6).
The remaining four counts of the superseding indictment are
identical to the original four-count indictment.
Nahodil entered into a plea agreement whereby he agreed to
plead guilty to Count II of the superseding indictment charging
him with using or carrying a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1), and
the United States agreed to dismiss the four remaining counts
in the superseding indictment. The plea agreement was executed
by Nahodil and United States Attorney James J. West on May 22
and May 24, 1991, respectively. As a result of the plea
agreement, a change of plea hearing was held on May 31, 1991.
At the hearing, Nahodil pled guilty to Count II of the
superseding indictment, which charged that:
The hearing, which lasted more than one hour, was repeatedly
delayed to allow Nahodil to consult with his attorney. Nahodil
sought the advice of his counsel no less than seven times
during the hearing. Apparently, Nahodil's chief concern during
the hearing was that, although the firearm and drugs were
located in the same room, he did not feel that this amounted to
the use of a firearm "during and in relation to a drug
trafficking offense". Nahodil stated that the firearm was
brought up as a conversation piece and was never used as a
threat. Due to this concern, the court questioned Nahodil
regarding the firearm to ensure that under current legal
standards it was in fact used to facilitate drug trafficking.
COURT: Did you pick up the gun?
DEFENDANT: Your Honor, she asked me about it and
I, I tried to explain it to her, it's used to go
hunting with me, Your Honor.
COURT: Was it in the bedroom with you?
DEFENDANT: Yes, sir, it was on the gun rack.
COURT: And while she was up in that room you did
pick it up and show it to her?
DEFENDANT: Yes, sir, but not as a threat.
COURT: Did you ask Christine to bring you some
DEFENDANT: No, sir.
COURT: Did you get ammunition?
DEFENDANT: I went down and got it myself.
COURT: [In state court] you plead guilty to
delivery of cocaine or possession with intent to
deliver, based on the facts Mr. Rocktashel has
recited, isn't that so?
DEFENDANT: Yes, sir.
COURT: And during the course of it you had this
firearm in your bedroom where you were with Miss
DEFENDANT: Yes, sir.
COURT: And you picked it up and you got ammunition
DEFENDANT: Yes, sir.
COURT: Did you load it?
DEFENDANT: No. Your Honor, the .22 rifle was a
conversation piece. Me and Miss Brawn (sic.) were
out with my — Your Honor, if you take notice, the
gun was bought December 23rd, two days prior to
Christmas, Your Honor. My son just turned 12 years
old. He took a hunter's safety course and it was my
Christmas gift to my son, Your Honor.
And Miss Brawn (sic.), in fact, was with me on
quite a few occasions when we went out shooting
the gun, and she brought it up as a conversation
piece in my home that day, Your Honor. Asking
COURT: Now, you're the one that's pleading guilty
here today, Mr. Nahodil, to this crime. And
DEFENDANT: Yes, sir
COURT: And it's my understanding, and Mr.
Rocktashel and Ms. Byrd can correct me if I'm
wrong, but it's my understanding that it's not
necessary for you to be convicted of this offense
that you actually brandished it in the direction
of Miss Brawn (sic.) or threatened her with it,
isn't that correct?
MR. ROCKTASHEL: That's correct, Your Honor. It can
even be concealed. But in this case it was
COURT: There was a very recent case, I believe, in
the Third Circuit or the Supreme Court. Ms. Byrd,
are you aware. MS. BYRD: Yes, I agree with Mr.
COURT: If the weapon had been found in the
bedroom, even if you had not picked it up, I think
that you could be found guilty of this offense.
But in any event, that's not what happened. You
did pick it up and you did show it and you did
have it with you. And then you — and you knew that
is what it was and that you had it there during the
time when you also possessed the cocaine with
intent to deliver or delivered it to Miss Brawn
(sic.). Do you agree with that?
DEFENDANT: Yes, sir, I'll agree that they were
both present at the same time, Your Honor.
MS. BYRD: Your Honor, with respect to the case
law, I think it should be noted
that the courts have found that there was enough
evidence to uphold the conviction on those counts
where the gun was concealed or it was merely on
the wall and not picked up. But I mean, obviously,
it would ultimately be a jury question.
COURT: Yes, but in this case he actually picked it
up and got ammunition for it, so it goes beyond
the case that you've cited. There's certainly
sufficient evidence there for a jury to find him
guilty of that offense.
On June 14, 1991, Nahodil filed a motion to withdraw his
guilty plea pursuant to Fed.R.Crim.P. 32(d). He contends that
he is not guilty of using a firearm "during and in relation" to
a drug trafficking crime, and that Deborah Braun, the
confidential informant and key witness in this case, has not
been truthful. By supplemental brief, the government has
notified the court that Deborah Braun died on August 11, 1991,
at Shamokin General Hospital. Although the cause and manner of
death are still under investigation, the government indicates
that death was apparently due to a drug overdose.
"If a motion for withdrawal of a plea of guilty or nolo
contendere is made before sentence is imposed, . . . the court
may permit withdrawal of the plea upon a showing by the
defendant of any fair or just reason." Fed.R.Crim.P. 32(d). A
determination of whether to allow withdrawal of a guilty plea
requires consideration of the facts and circumstances in each
case. United States v. Crowley, 529 F.2d 1066, 1071 (3d Cir.
1976). Such a motion should be construed liberally in favor of
the accused. United States v. Young, 424 F.2d 1276, 1279 (3d
Cir. 1970); United States v. Hancock, 607 F.2d 337 (10th Cir.
However, a criminal defendant has no absolute right to
withdraw a guilty plea under Rule 32(d). United States v.
Martinez, 785 F.2d 111, 115 (3d Cir. 1986), citing United
States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985); Government
of the Virgin Islands v. Berry, 631 F.2d 214, 219-20 (3d Cir.
1980). Withdrawal of a guilty plea is a privilege, not a right.
Id. at 220.*fn1
Both parties have cited Third Circuit cases for the three
factors which the court of appeals considers when reviewing a
district court's disposition of a motion to withdraw a guilty
plea pursuant to Rule 32(d). These three factors are: 1)
whether the defendant asserts his innocence; 2) whether the
government would be prejudiced by withdrawal; and 3) the
strength of the defendant's reasons for moving to withdraw.
See, e.g., United States v. Martinez, 785 F.2d at 114.*fn2
While this is a correct recitation of the law concerning the
court of appeals' review of a district court's ruling on a Rule
32(d) motion, the court prefers to determine the motion in
accordance with the analysis set forth in the advisory notes to
the Rule. This approach combines above factors (1) and (3), as
they both relate to defendant's reasons for seeking the plea
withdrawal, and makes them the initial consideration for the
court. The court does not consider whether the government would
be prejudiced by withdrawal of the plea unless and until the
defendant first establishes a "fair and just" reason for the
withdrawal of the plea.
The first sentence of the amended rule
incorporates the "fair and just" standard which
the federal courts, relying upon dictum in
Kercheval v. United States, 274 U.S. 220 [47 S.Ct.
582, 71 L.Ed. 1009] (1927), have consistently
applied to pre-sentence motions. See, e.g., United
States v. Strauss, 563 F.2d 127 (4th Cir. 1977);
United States v. Bradin, 535 F.2d 1039 (8th Cir.
1976); United States v. Barker, 514 F.2d 208 (D.C.
Cir. 1975). Under the rule as amended, it is made
clear that the defendant has the burden of showing
a "fair and just" reason for withdrawal of the
plea. This is consistent with the prevailing view,
which is that "the defendant has the burden of
satisfying the trial judge that there are valid
grounds for withdrawal,". . . .
Although "the terms `fair and just' lack any
pretext of scientific exactness," United States v.
Barker, supra, guidelines have emerged in the
appellate cases for applying this standard. Whether
the movant has asserted his legal innocence is an
important factor to be weighed, United States v.
Joslin, 434 F.2d 526 (D.C. Cir. 1970), as is the
reason why the defenses were not put forward at the
time of original pleading. United States v.
Needles, 472 F.2d 652 (2d Cir. 1973). The amount of
time which has passed between the plea and the
motion must also be taken into account.
A swift change of heart is itself a strong
indication that the plea was entered in haste
and confusion * * *. By contrast, if the
defendant has long delayed his withdrawal
motion, and has had the full benefit of
competent counsel at all times, the reasons
given to support withdrawal must have
considerably more force.
United States v. Barker, supra.
If the defendant establishes such a reason, it
is then appropriate to consider whether the
government would be prejudiced by withdrawal of
the plea. Substantial prejudice may be present for
a variety of reasons. See United States v. Jerry,
487 F.2d 600 (3d Cir. 1973) (physical evidence had
been discarded); United States v. Vasquez-Velasco,
471 F.2d 294 (9th Cir. 1973); (death of chief
government witness); United States v. Lombardozzi,
436 F.2d 878 (2d Cir. 1971) (other defendants with
whom defendant had been joined for trial had
already been tried in a lengthy trial); Farnsworth
v. Sanford, 115 F.2d 375 (5th Cir. 1940)
(prosecution had dismissed 52 witnesses who had
come from all over the country and from overseas
Fed.R.Crim.P. 32(d) advisory committee's note, 1983 amendment.
The advisory committee note also discusses the impact of
Fed.R.Crim.P. 11 on the resolution of a motion to withdraw a
guilty plea prior to sentencing pursuant to Rule 32(d).
Rule 11 now provides for the placing of plea
agreements on the record, for full inquiry into
the voluntariness of the plea, for detailed advice
to the defendant concerning his rights and the
consequences of his plea and a determination that
the defendant understands these matters, and for a
determination of the accuracy of the plea. Given
the great care with which pleas are taken under
this revised Rule 11, there is no reason to view
pleas so taken as merely "tentative," subject to
withdrawal before sentence whenever the government
cannot establish prejudice.
Were withdrawal automatic in every case where
the defendant decided to alter his tactics and
present his theory of the case to the jury, the
guilty plea would become a mere gesture, a
temporary and meaningless formality reversible
at the defendant's whim. In fact, however, a
guilty plea is no such trifle, but "a grave and
solemn act," which is "accepted only with care
United States v. Barker, supra, quoting from Brady
v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970).
While these factors are essentially identical to those set
forth in the Third Circuit cases, the note of the advisory
committee states more succinctly the manner in which a district
court should resolve a Rule 32(d) motion. In addition, it
appears that the Third Circuit has adopted the approach set
forth in the advisory note. See United States v. Martinez,
supra, at 115-16 (citing note with approval).
Nahodil's motion is based on his claim that he is innocent of
the charge to which he has pled guilty. He maintains that he
did not carry a firearm "during and in relation" to a drug
trafficking offense. Nahodil bases his claim of innocence on
contention that the Savage combination 22 caliber rifle/20
gauge shotgun was merely a conversation piece and was not used
in relation to a drug sale. Significantly, this is the same
concern raised by Nahodil at his change of plea hearing on May
31, 1991. In addition, Nahodil's defense counsel was notified
as early as June 6, 1991, one week after the hearing, that he
was considering withdrawing his plea. On June 14, 1991, his
motion to withdraw the plea was filed. Nahodil's reluctance to
plead guilty to Count II was readily apparent at the hearing.
In fact, the court only accepted his plea because, after
numerous consultations between Nahodil and his counsel, he
indicated that he still wished to plead guilty to Count II, and
the facts as admitted by Nahodil were sufficient to support a
jury verdict against him on Count II of the superseding
indictment. These factors militate towards allowing Nahodil to
withdraw his plea.
Furthermore, although it appears that circumstances
surrounding Nahodil's possession of the Savage combination
firearm on April 13, 1989, would be sufficient to support a
jury verdict against him on Count II, a jury could still acquit
Nahodil of the charge if it found his explanation credible. In
evaluating whether a firearm was carried in relation to a drug
trafficking crime, the court must examine the totality of the
circumstances surrounding the commission of the crime such as
the emboldened sallying forth, execution of the transaction,
escape and likely response to contingencies that might have
arisen during the commission of the crime. United States v.
Brown, 915 F.2d 219, 226 (6th Cir. 1990).
The aforementioned sufficiently establishes a "fair or just"
reason to allow Nahodil to withdraw his guilty plea.
Consequently, the burden now shifts to the government to show
that it would be prejudiced by the withdrawal.
By supplemental brief the government has notified the court
that its key witness, Deborah Braun, died of an apparent drug
overdose. Although Nahodil has questioned Braun's credibility,
even he admits that Braun, who operated as a confidential
informant, was a key witness. The government argues that
Braun's testimony was no less than essential with regards to
Count II of the superseding indictment. The loss of this
witness clearly weakens the governments case significantly, and
allowing Nahodil to withdraw his plea at this time would
substantially prejudice the government. See United States v.
Vasquez-Velasco, 471 F.2d 294 (9th Cir. 1973) (death of chief
government witness); see also United States v. Trott, supra,
779 F.2d at 915 (government prejudiced by having once again to
provide protection for endangered witnesses); Government of the
Virgin Islands v. Berry, supra, 631 F.2d at 221 (government
prejudiced by having to assemble witnesses after co-defendant's
acquittal when joint trial was possible); United States v.
Jerry, 487 F.2d 600, 611 (3d Cir. 1973) (physical evidence
discarded); United States v. Lombardozzi, 436 F.2d 878, 881 (2d
Cir. 1971) (other defendants with whom defendant had been
joined for trial had already been tried in a lengthy trial);
Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940)
(prosecution had dismissed 52 witnesses who had come from all
over the country and from overseas bases).
Accordingly Nahodil's motion will be denied.